McDonnell should sign HB 1160

Sitting on the Governor’s desk is HB 1160, a bill patroned by Del. Bob Marshall that would prohibit Virginia National Guardsmen, police and other officials from participating in:

…the conduct of the investigation, prosecution, or detention of any citizen pursuant to 50 U.S.C. § 1541 as provided by the National Defense Authorization Act for Fiscal Year 2012

Marshall’s bill passed the General Assembly overwhelmingly. The Governor appears to have some qualms about signing it:

Through a spokesman, the governor has expressed serious reservations, saying that while he does not condone the unlawful detention of U.S. citizens, he has concerns about unintended consequences it could have on joint terrorism task forces and information-sharing between state and federal agencies.

This is ridiculous.

As Bart Hinkle reminded us yesterday, on the anniversary of James Madison’s birth:

Too many conservatives feel complacent about soldiers arresting citizens without charges and holding them indefinitely on the mere suspicion of cooperating with al-Qaida. Perhaps they do not remember Madison’s warning that “the means of defence agst. foreign danger, have been always the instruments of tyranny at home.” But they ought to remember the early 1990s, when militia groups sprang up in the wake of Ruby Ridge and Waco to defend the Constitution against what the NRA’s Wayne LaPierre termed the “jack-booted thugs” of the federal government. Just because the Bush administration adopted indefinite detention doesn’t make it a good idea.

If they cannot remember even that far back, then perhaps they can remember all the way back to 2009, when outrage erupted over a Department of Homeland Security report that focused on domestic “rightwing extremism” — including returning veterans, abortion opponents and anyone “rejecting federal authority in favor of state or local authority.” Some people who call members of the tea party “terrorists” think they are speaking literal truth.

Conservatives who cannot remember even back to 2009 at least ought to remember that any indefinite detention would be ordered by the same authorities who are nationalizing health care and trampling the First Amendment rights of Catholic institutions. Distrust of federal authorities is a good thing and should not be summarily suspended just because someone utters the two magic words: “national security.”

He’s right.

Do Mr. Madison a solid on his birthday, Governor: sign the bill.

  • MD Russ


    I was tracking with you until you quoted Bart’s apparent approval of militia groups that grew in the wake of the Waco Branch Davidians. Let me refresh your memory. ATF agents, accompanied by local Texas law enforcement, were serving a Constitutionally legal search warrant. Instead of complying with the warrant as required by the law, the Branch Davidians opened fire without warning. Four ATF agents were shot and killed. A siege of the compound ensued that eventually was ended after 50 days when Federal law enforcement was forced to bring in armored vehicles because of the heavy volume of smalls arms fire from the Davidians whenever they attempted to approach the compound.

    Law enforcement officers doing their sworn duty were ambushed and murdered. The killers were given 50 days to surrender and instead continued to fire upon law enforcement officers, using women and children as human shields. And this is an example of an unconstitutional, oppressive use of police power?

    I’m not buying that for a second.

  • Brian Evans

    I was on board with ya on the Amit issue but I have to disagree with you here. The key words are “Constitutionally legal search warrant” There’s nothing Constitutional about the NDAA and the Patriot Act is anyone associated with enemy forces and no right to a lawyer.

  • HB 1160 runs afoul of the Constitution itself, and I would hope the Governor would not sign it on those grounds. There are supremacy clause issues as well as issues regarding the role of the executive branch and state governments when it comes to control over the national guard.

    I understand the point of this bill, but this isn’t the right way to get Congress to look at the NDAA issues again (which is already happening).

  • MD Russ

    Brian Evans,

    I am not arguing for or against 1160; I don’t know enough about it, quite frankly. My objection was against the use of the Branch Davidian Waco stand-off as a demonstration for the need for restraint on Federal law enforcement. Law enforcement, both Federal and local, did nothing wrong at Waco and justifying domestic terrorists like Tim McVeigh and the militia movements on the basis of Waco is just wrong-headed and paranoid.

  • Brian Evans

    MD Russ,
    Oh, Sorry…I guess we agree again.

    I just do not understand why anyone can agree that locking someone up without charge or warrant or killing someone without a trial is just. To me, I cannot even believe I have to justify this.

    At the time of Waco, I agreed with the Feds intervention but what I’m seeing today of our Federal government (i.e. Patriot Act, NDAA, assassinations, etc.), I’m beginning to question those actions.

    …and I’m beginning to question our state government, or should I say State.

    I’m straight now.

  • Brian Evans

    Brian S,
    Is that Governor McDonald’s justification for not signing it. The bill is clarifying that Virginia employees will not commit an unconstitutional act which includes detenting Virginians. This is whether they are under Federal jurisdiction or not.

    “…if such aid would place any state agency, political subdivision, employee of such state agency or political subdivision, or aforementioned member of the Virginia National Guard or the Virginia Defense Force in violation of the United States Constitution, the Constitution of Virginia, and provision of the Code of Virginia, any act of the General Assembly, or any regulation of the Virginia Administrative Code.”

    Quite honestly, I cannot believe that we’re having the discussions of whether American citizens should be detained or killed wihtout due process.

  • MD Russ

    Brian Evan,

    I think that you are referring to Anwar Awlaki. That is a problematic case. Here we have an American citizen who has placed himself beyond the reach of the American legal system by taking refuge in a lawless region of Yemen. From there he planned, directed, and facilitated terrorist attacks on innocent Americans. He was obviously an enemy combatant committing war crimes under numerous international treaties. Did his American citizenship afford him any status as a legitimate military target other than that of Osama bin Laden?

    Personally, I am glad that he is dead and his demise does not cause me any concern that a drone will hunt me out in Fairfax County and kill me without a warrant or trial.

  • William Bailey

    “Personally, I am glad that he is dead and his demise does not cause me any concern that a drone will hunt me out in Fairfax County and kill me without a warrant or trial.”

    I love that statement. I agree. The bill is dumb. Don’t sign it.

  • Brian Evans

    MD Russ,
    Yeah, Anwar Awlaki’s drone may not have gotten you but now you can get your own.

    Your right, the law doesn’t have much protection of Virginia employees so it wouldn’t make much difference. Can’t believe we lost our Fourth, Fifth and Sixth Amendments rights.

    …and they need defended.

  • Brian, the bill is a thinly veiled attempt at nullification of a federal law. Regardless of whether the law is Constitutional – Congress and the President both think it is or the wouldn’t have passed it and signed it, and the judicial branch has yet to weigh in – it strains federalism for a state government to try and shield itself from a law it doesn’t agree with,

    If this law is passed, what do you think will happen if a Virginia National Guardsman refuses orders because he thinks it violates this law? He’s going to get thrown in the brig.

    I understand Bob Marshall’s concern about the NDAA, but this is the wrong way to go about solving it. The right way is the other thing he’s doing, which is running for Senate. If he wants to change federal law, he should be doing it from the Congress, not the General Assembly. He’s got no chance to win, but if he can force George Allen or Tim Kaine to talk about this issue, that’s far more helpful than this bill is,

    • I actually think there’s much more to nullification than we give it credit for. Obviously it has bad connotations because of some of the purposes it was used for in the 19th century, but a large part of the American Revolution was based on a principle of nullification, although it wasn’t called as such. It was based on Lord Coke’s philosophy that citizens had no duty to obey laws, nor to convict violators of laws, that went against the English constitution. But, of course, it’s not as simple as that, since in England and Great Britain Parliament gradually assumed the power to judge the constitutionality of its own laws–a measure the US attempted to correct with a separate branch. But the argument was also made that *even if justices* declared a law to be constitutional, if it went against the very laws of nature, and the plain meaning of the British constitution, it was null and void.

  • Brian Evans

    Brian S.,
    “Regardless of whether the law is Constitutional” Really?

    Our Representatives have assumed the role of LEADERS which are dangerous positions.

    Bottom line…Do you think that the NDAA is Constitutional?

  • I don’t know, Brian. I haven’t looked at the language in a while nor am I an expert on that area of law. But plenty of better lawyers than me were involved in the drafting and passage of it.

  • Andrew, that’s one area where we’ve diverged from the common law. No law can supersede the Constitution, and laws are presumed Constitutional until they are determined to be otherwise.

    • Right, and that’s why I’m not so sure about this bill. But I think the question does remain, “determined to be otherwise” by whom? If it must be determined by the Supreme Court, then they have themselves assumed the mantle of the arbiters of constitutionality, for the Constitution grants that court no such power. If it is established by judicial precedent, then the argument is no different. The Revolutionary way of determining constitutionality was not by the judgments of a single court on a single case, but by a pattern of cases dismissed or nullified by juries. Interestingly, the power of jury nullification was widely used in the North prior to the Civil War in their refusals to convict violators of the Fugitive Slave Law–all while they detested the South for declaring their rights to nullification.

  • MD Russ


    I do suppose that you have heard of a case called, Marbury vs. Madison?

    • MD, that’s my point. Judicial Precedent has established that the Supreme Court gets to be the arbiter. Not the Constitution. How can you challenge that Supreme Court precedent under the current system? It’s a contradiction in terms. Nemo iudex in causa sua–no one shall be judge in his own cause. The Supreme Court couldn’t take the case because they would be judging on their own constitutionality (conflict of interest??).

      I’m not saying the system’s collapsed or anything like that–in fact, it’s worked pretty well, all things considered. But what I am saying is that accepting 9 justices as the supreme arbiters of constitutionality does have the potential to introduce the same sort of arbitrary power that American Colonists saw in parliament. Imagine Congress passed a law saying that the Episcopalian Church is the one true religion and that all other churches and forms of worship are declared anathema. Then imagine that a president signed it. Then imagine the Supreme Court declared it Constitutional. Would it be Constitutional? Obviously not, but a lot of people say we have to accept Supreme Court judicial review. Sure, you could introduce a Constitutional Amendment, but what would you say in that Amendment that the First Amendment doesn’t?


    The usurper BHO is stiff arming our ‘You keep the change.’ plans with the full force of the usurped government.

    God have mercy on us. This is a good day for diligent prayer and fasting.

    On the worst days of King George’s madness he never had such presumptuous conceit as is ordinary for BHO & crew. This execution of this EO was prepared for by the NDAA and the unPatriot Act. Now you can know the tree by its fruit. With BHO’s ‘Preparedness’ EO you now have ‘War is Peace’.

    BHO’s executive order establishes Crony Communism in the United States. All other law but ‘commissar’ whim is ordered ephemeral under the appetite of the ‘commissars’ now. The government’s officers have shed their oath-bound-official-capacity and have made themselves into vain idols conceiting the ultimate authority over all property and human activity.

    God is our only remedy. The fear of God is the essential beginning of wisdom for all those who share BHO’s NWO fascist conceits. Unless God chooses to strike BHO in some fashion that makes it plain to most that it is God acting not man or happenstance the NWO cronies in both parties rush to take up BHO’s mantle of conceit to authority against God and our Constitution.

    It is our Constitution, receiving its authority to become from ‘The Laws of Nature and Nature’s God’, that defines our part in God’s battle against the usurper’s conceit. Each of us own a part in that where right and duty define each other. America is still exceptional in that no matter what BHO says or does.

    Today our best action is is to listen as God speaks to each of us.

    Also please prayer for VA Gov. Bob McDonnell as the beauty of Virginia’s Constitution and Law puts a particularly large burden of duty upon him.
    Bob McDonnell will not be able to do his duty without the help of Bill Bolling.

  • Andrew, that’s the point – the Supreme Court isn’t the supreme arbiter of constitutionality. Madison’s system envisioned that all three branches would have a responsibility in upholding the constitution – the Congress shouldn’t pass unconstituional legislation, the Executive to veto them and the courts should refuse to enforce them.

    There was a place for state action pre-Civil War, but not since.

  • I agree with Brian’s constitutional concerns, but I also think Norm did the governor a disservice by glossing over his policy concerns. Norm notes that Governor McDonnell “has concerns about unintended consequences it could have on joint terrorism task forces and information-sharing between state and federal agencies.” Norm dismisses these concerns as “ridiculous” without addressing them on the merits.

    After the 9/11 attacks, the 9/11 Commission concluded that the attacks might have been thwarted if there had been better sharing of information between government agencies, much of which was actually prohibited by policies implemented by President Clinton. So, it is reasonable for Gov. McDonnell to be concerned about any law that potentially could prevent the Commonwealth from sharing with federal agencies information that could help thwart future terrorist attacks.

    If Norm truly believes that these concerns are “ridiculous” in the context of HB 1160, he should explain specifically why. This is especially true given that Gov. McDonnell, more than most elected officials, has shown that he is truly interested in enacting responsible policies after full consideration of both their stated goals and any possible unintended consequences. So, Gov. McDonnell has earned the benefit of the doubt when he expresses these kinds of concerns.

    So, Norm, do the governor a solid and explain why you believe his concerns about unintended consequences are “ridiculous.”

  • Gregory Honeycutt

    One of our members wrote this post the other day…

    As far as true nullification goes, HB 1160 is just a step the right direction at reminding the Federal Gov’t they have over-stepped. (AGAIN!) And frankly, Gov. McDonnell’s reservations with HB 1160 are merely the tip of his political iceberg.

    Someone has to take a Madison/Jefferson-like stand, and say no. This far, no further.

  • I would like to hear the senate candidates all give an answer on this at the debates…

  • Tim J

    But wait! The Obama administration sneaks this in late Friday afternoon to “update” EO 12929 which also reminds us of that in matters of national defense when determined by a cabinet official at the Federal level, the States are considered “resources” to be exploited by the Federal Government no matter what is passed at the state level. This also includes “private business”.

  • MD Russ

    Tim J,

    To the best of my knowledge, EO 12929 dates back to the first Clinton term and was “updated” by George W. Bush following 9-11. There is nothing sinister that I can detect, unless you want the individual states to be allowed to withhold national resources from the various Federal departments in a national emergency. For example, should Texas be allowed to hoard refined fuel oil when the Navy needs it in Norfolk to fuel its ships? That would defy Article I of the Constitution that gives Congress the authority to raise and provision the Armed Forces and Article II of the Constitution that designates the President as the Commander-in-Chief of the Armed Forces.

  • Tim J

    Like I said, this is an “update” to existing EOs to define the roles of Government agencies which didn’t exist when it was first signed. The dead drop on Friday afternoon is an unforced error in a hypersensitive political season concerning something which no one had thought much about, until now.

  • Brian Evans

    Tim J,
    Yeah, Obama’s worried about our National Defense?

    With searching citizens without warrants (TSA), detaining American citizens without charge and killing Americans without due process…I should’ve guessed that he was looking out for our national defense.

  • MD Russ


    You realize, I am sure, that all of that was going on under Bush and previous administrations as well?

    Look, I am not an Obama fan, but the security problems facing us today are not easily solvable by either Democrats or Republicans. These are challenges to our very way of life that transcend partisan politics. And there are no “yes” or “no” answers. Anyone who wants to play politics with such complex issues is not a patriot.

  • Brian Evans

    I realize that we did not get here in three years, this executive order identifies several orders dating back to the Nixon era. This is not a Republican or Democrat issue, it is about political power and freedom.

    The examples I gave was dealing with just Obama and he’s the one that signed the executive order.

    My point is that with Obama taking away all those liberties why he’d assume that he’s concerned about updating this bill for “national defense” is not a solid assumption. So, to control all food, farm resources and transportation doesn’t appear that he’s interested in just fueling up ships in Norfolk.

  • That’s not what it does, Brian. This is strictly for prioritizing defense needs in wartime. It’s based on authorities granted in the Defense Production Act of 1950. If you want to blame anybody for this, go blame Truman.

  • Brian E

    Actually, I blame a complacent media corps, pundits and bureaucrats who have protected these executive orders for over 60 years under the aupious excuse…it’s always been done this way. But Tim J’s and your points are well taken.

    But it doesn’t account for the fact that all we need is to pass a law and declare an emergency and our Constitution is thrown out the window. Where’s the Constitutional Amendment suspending our Constitutional Rights during a time of war (i.e. Seoncd Amendment Rights)? …and where’s the outcry?

    We saw where that gets us in New Orleans. It’s a shame that people have allowed this to go on for so long.

    There’s oil reservces for the purpose of emergencies and the military industrial complex is very well funded to where they don’t need to acquire farmer Bob’s tractor, Granny’s food and water and Jim Bob’s vehicle to fight a war. Thought we were passed the point of militias.

  • Michael Bush

    Sign the Bill.

  • Lennet Bowers

    If Bob doesn’t sign the bill, I won’t vote for him in any future elections.

  • John Sanders

    I thought under Virginia law, this bill would become law if in 7 days the Governor takes no action…

  • Anonymous

    Interesting thread on legitimate authorities for determining constitutionalty. True, all three branches have a role, but this certainly does not preclude a role for the people, their voices resonating more loudly at the state and local levels. That said in concurrence, no one branch alone determines constitutionality, each branch’s powers being checked by the other two, what checks a politically unified government which, hypothetically, enacts laws explicitly and evident to anyone with a modicum of reason that are usurpations of their citizen’s inalienable rights? Do not the people retain some recourse against such circumstance rather than appeal to a federal government which has united in its opposition to individual natural rights? What is to check such a circumstance rather than anarchy if the several state governments are not envisioned to be legitimate governmental bodies to contest federal usurpation of basic rights?

    The detention provisions of the NDAA are such an enactment. They clearly expand federal power beyond the reasonable bounds set by the Constitution. There are now 10 states with similar nullification laws in various stages of process. Our federal government is rapidly loosing its legitimacy as that legitimacy is founded on its adherance to our foundational principles found within our Constitution and Declaration of Independance. These documents were written for all of the people and are meant to be understood by the everyday citizen. In this particular case, it does not take a Constitutional law scholar to see that our government has greatly overstepped its bounds. Our governor should sign this legislation immediately. His hesitation has already undermined his legitimacy, as well as our citizen’s trust in even their state government to defend their most basic rights.

  • Author of long anonmous post on challenging constitutionality. Governor McDonnel, sign the legislation or follow President Obama and all other supporters of the NDAA as those who destroyed American’s most basic rights.

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